PROCUREMENT POLICY PEACE RIVER MANASOTA REGIONAL WATER SUPPLY AUTHORITY

Transcription

1 PROCUREMENT POLICY PEACE RIVER MANASOTA REGIONAL WATER SUPPLY AUTHORITY January 2016

2 THIS POLICY IS TO ESTABLISH CRITERIA AND PROCEDURES FOR: Securing supplies, services and construction; Providing definitions; Providing for public access to procurement information; Providing the Authority for the formulation of procedures to implement the office, authority and duties of the Purchasing Director; Providing for the delegation to other agency officials of such authority and duties; Providing sanctions for unauthorized purchases or contracts; Providing that unauthorized purchases or contracts shall not be binding on the Authority; Providing methods of source selection; Establishing qualifications and duties for bidders and offerors; Providing for types of contracts and contract administration; Providing procedures to assure maximum competition; Providing for the management of construction contracts; Providing for bid security and performance bonds; Providing for supply management; Providing authorization and procedures for the transfer and disposal of supplies; Providing for cooperative purchasing and intergovernmental relations; Providing for appeals and remedies; Providing ethical standards and sanctions and penalties for violation thereof; and Providing an effective date i

3 Table of Contents CHAPTER 1 - GENERAL PROVISIONS 1.1 Purpose Application Constructive Notice Definitions Public Access to Procurement Information... 5 CHAPTER 2 - OFFICE OF THE PURCHASING DIRECTOR 2.1 Establishment, Appointment and Tenure Authority and Duties Delegation to Other Authority Officials Unauthorized Purchases... 7 CHAPTER 3 - SOURCE SELECTION AND CONTRACT FORMATION 3.1 Methods of Source Selection Competitive Sealed Bidding Competitive Sealed Proposals Contracting for Designated Professional Services Delegation of Authority Sole Source Procurement Emergency Procurements Cancellation of Invitations for Bids or Requests for Proposals Contact with Authority Board and Staff Qualifications and Duties Responsibility of Bidders and Offerors Cost or Pricing Data Cost or Price Analysis ii

4 3.2.4 Bid, Performance and Payment Bonds on Supply or Service Contracts Public Entity Crimes Types of Contracts and Contract Administration Types of Contracts Contract Clauses and Their Administration Contract Administration Cost Reimbursement Provisions Right to Inspect Plant Right to Audit Records Authority Procurement Records Notice of Federal Public Policy Requirements CHAPTER 4 - SPECIFICATIONS 4.1 Maximum Practicable Competition Qualified Products List Brand Name or Equal Specification Brand Name Specification Buy American Requirements Energy Conservation Express Warranty CHAPTER 5 - PROCUREMENT OF CONSTRUCTION, ARCHITECT, ENGINEER AND LAND SURVEYING SERVICES 5.1 Management of Construction Contracting Responsibility for Selection of Methods of Construction Contracting Management Bid Security and Performance Bonds Bid Security Contract Performance and Payment Bonds Fiscal Responsibility Professional Architectural, Engineering, Landscape Architectural or Surveying And Mapping Services Public Announcement, Competitive Selection and Negotiation iii

5 5.4.2 Design-Build Contracts CHAPTER 6 - COST PRINCIPLES 6.1 Cost Principles Regulations Required CHAPTER 7 SUPPLY MANAGEMENT 7.1 General Supervision Quality Assurance, Inspection and Testing Inventory Management Warehousing and Storage Authorization to Dispose of Supplies Transfer of Excess and Surplus Supplies Disposition of Surplus Supplies Auctions Posted Prices Trade-In CHAPTER 8 APPEALS AND REMEDIES 8.1 Bid Protests Remedies for Solicitations or Awards in Violation of the Law Contract Claims Procedure for Protests of Plans and Specifications Procedure for Pre-Bid Protests CHAPTER 9 INTERGOVERNMENTAL RELATIONS 9.1 Cooperative Purchasing Authorized Sale, Acquisition or Use of Supplies by a Public Procurement Office Cooperative Use of Supplies or Services Joint Use of Facilities Supply of Personnel, Information and Technology Use of Payment Received by a Supplying Public Procurement Unit iv

6 9.7 Public Procurement Units in Compliance with Ordinance Requirements CHAPTER 10 ETHICS IN PUBLIC CONTRACTING 10.1 Criminal Penalties Employee Conflict of Interest Gratuities and Kickbacks Prohibition Against Contingent Fess Contemporaneous Employment Prohibited Waivers from Contemporaneous Employment Prohibition and Other Conflicts of Interest Use of Confidential Information Conflicts of Interest Sanctions Recovery of Value Transferred or Received in Breach of the Ethical Standards APPENDICES A Public Entity Crimes Form v

7 CHAPTER 1 GENERAL PROVISIONS 1.1 Purpose The purpose of this Procurement Policy is to provide for the fair and equitable treatment of all persons involved in public purchasing by the Authority, to maximize the purchasing value of public funds in procurement and to provide safeguards for maintaining a procurement system of quality and integrity. 1.2 Application This Policy applies to contracts for the procurement of supplies, services and construction entered into by the Authority after the effective date unless the parties agree to its application to contracts entered into prior to the effective date. It shall apply to every expenditure of public funds by the Authority for public purchasing irrespective of the source of the funds. When the procurement involves the expenditure of assistance or contract funds from other governmental bodies, the procurement shall be conducted in accordance with any mandatory applicable laws and regulations. Nothing in this Policy shall prevent the Authority from complying with the terms and conditions of any grant, gift, or bequest that is otherwise consistent with law. 1.3 Constructive Notice All Persons who may bid or be awarded a contract with the Authority, pursuant to this procurement policy, are considered to be on constructive notice of all provisions contained herein. 1.4 Definitions Authority. The Peace River Manasota Regional Water Supply Authority. Actual Costs. All direct and indirect costs which have been incurred for services rendered, supplies delivered, or construction built, as distinguished from allowable costs only. Allowable Costs. Direct and indirect costs which have been incurred for services rendered, supplies delivered, or construction built, which may be charged to the Authority. Architect-Engineer and Land Surveying Services. Those professional services within the scope of the practice of architecture, professional engineering, or land surveying, as defined by the laws of the State of Florida. Brand Name or Equal Specification. A specification limited to one or more items by manufacturers' names or catalogue numbers to describe the standard of quality, performance and other salient characteristics needed to meet Authority requirements and which provides for the submission of equivalent products. Brand Name Specification. catalog. A specification limited to one or more items by manufacturers' names or Change Order. A written order signed and issued by the Purchasing Director directing the contractor 1

8 to make changes which the "Changes" clause of the contract authorizes the Purchasing Director to order. Any work authorized by a change order shall not be started until the change order is signed and issued. Construction. The process of building, altering, repairing, improving, or demolishing any public structure or building, or other improvements of any kind to any public real property. It does not include the routine operation, routine repair, or routine maintenance of existing structures, buildings, or real property. Contract. All types of Authority written agreements, regardless of what they may be called, for the procurement of supplies, services, or construction. Contract Modification. Any written alteration in specifications, delivery point, rate of delivery, period of performance, quantity, or other provisions of any contract accomplished by mutual action of the parties to the contract. Contractor. Any person having a written contract with the Authority. Cooperative Purchasing. Procurement conducted by, or on behalf of, more than one Public Procurement Unit or by a Public Procurement Unit with an External Procurement Activity. Cost Analysis. The evaluation of cost data for the purpose of arriving at costs actually incurred or estimates of costs to be incurred, prices to be paid and costs to be reimbursed. Cost Data. Factual information concerning the cost of labor, material, overhead and other cost elements which are expected to be incurred, or which have been actually incurred, by the contractor in performing the contract. Cost Objective. Any unit of work such as a function, an organizational subdivision, or a contract for which provision is made to accumulate and measure separately the cost of processes, products, jobs, capitalized projects and similar items. A final cost objective is one that has allocated to it both direct and indirect costs. Cost-Reimbursement Contract. A contract under which a contractor is reimbursed for costs which are allowable and allocable in accordance with the contract terms and the provisions of this Policy, and a fee or profit, if any. Data. Recorded information, regardless of form or characteristic. Where numeric data is given, both in arabic numerals and in written language, and where there exists a discrepancy between an arabic numeral and written language, the written language shall be presumed to be correct and the arabic numeral shall be presumed to be incorrect. Designee. A duly authorized representative of a person holding a superior position. Direct or Indirect Participation. Involvement in any manner including, but not limited to, the decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in 2

9 any other advisory capacity. Employee. An individual drawing a salary or wage from the Authority. Established Catalog Price. The price included in a catalog, price list, schedule, or other form: (1) that is regularly maintained by a manufacturer or contractor; (2) that is either published or otherwise available for inspection by customers; and (3) that states prices at which sales are currently or were last made to a significant number of any category of buyers or buyers constituting the general buying public for the supplies or services involved. Expendable Supplies. All tangible supplies other than non-expendable supplies. External Procurement Activity. Any buying organization not located in this State which, if located in the State, would qualify as a Public Procurement Unit. An agency of the United States is an External Procurement Activity. Financial Interest. (1) Ownership of any interest or involvement in any relationship from which, or as a result of which, a person within the past year has received, or is presently or in the future entitled to receive, more than $100 per year, or its equivalent; (2) Ownership of 5% or more of any property or business; or (3) Holding a position in a business such as officer, director, trustee, partner, employee, or the like, or holding any position of management. Governmental Body. Any department, commission, council, board, bureau, committee, institution, legislative body, agency, government corporation, or other establishment or official of the executive, legislative, or judicial branch of any government in the United States of America. Grant. The furnishing by a governmental body of assistance, whether financial or otherwise, to any person to support a program authorized by law. It does not include an award whose primary purpose is to procure an end product, whether in the form of supplies, services, or construction. A contract resulting from such an award is not a grant but a procurement contract. Gratuity. A payment, loan, subscription, advance, deposit of money, service, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received. Immediate Family. A spouse, children, parents, brothers and sisters. Invitation for Bids. All documents, whether attached or incorporated by reference, utilized for soliciting sealed bids. 3

10 Local Public Procurement Unit. Any special district, county, municipality, school board, and any other subdivision of the State or public agency of any such subdivision; any public authority, educational, health, or other public institution; and, to the extent provided by law, any other entity which expends public funds for the procurement of supplies, services, and construction. May. Denotes the permissive. Nonexpendable Supplies. All tangible supplies having an original acquisition cost of over $100 per unit and a probable useful life of more than one year. Person. Any business, corporation, partnership, individual, committee, club, other organization, or group of individuals. Price Analysis. The evaluation of price data, without analysis of the separate cost components and profit as in cost analysis, which may assist in arriving at prices to be paid and costs to be reimbursed. Pricing Data. Factual information concerning prices for items substantially similar to those being procured. Prices in this definition refer to offered or proposed selling prices, historical selling prices and current selling prices. The definition refers to data relevant to both prime and subcontract prices. Procurement. The buying, purchasing, renting, leasing, or otherwise acquiring of any supplies, services, or construction. It also includes all functions that pertain to the obtaining of any supply, service, or construction, including description of requirements, selection, and solicitation of sources, preparation and award of contract, and all phases of contract administration. Procurement Officer. Any person duly authorized to enter into and administer contracts and make written determinations with respect thereto. The term also includes an authorized representative acting within the limits of authority. Public Agency. A governmental body. Public Procurement Unit. Either a Local Public Procurement Unit or a State Public Procurement Unit. Purchasing Agency. Any governmental body which is authorized to enter into contracts, other than the State Chief Procurement Officer. Qualified Products List. An approved list of supplies, services, or construction items described by model or catalogue numbers which, prior to competitive solicitation, the Authority has determined will meet the applicable specification requirements. Regulation. A governmental body's statement, having general or particular applicability and future effect, designed to implement, interpret, or prescribe law or policy, or describing organization, procedure, or practice requirements, which has been lawfully promulgated. Request for Proposals. All documents, whether attached or incorporated by reference, utilized for soliciting proposals. 4

11 Responsible Bidder or Offeror. A person who has the capability in all respects to perform fully the contract requirements, and the tenacity, perseverance, experience, integrity, reliability, capacity, facilities, equipment, and credit which will assure good faith performance. Responsive Bidder. A person who has submitted a bid which conforms in all material respects to the requirements set forth in the invitation for bids. Services. The furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports which are merely incidental to the required performance. This term shall not include employment agreements or collective bargaining agreements. Shall. Denotes the imperative. Specification. Any description of the physical or functional characteristics or of the nature of a supply, service, or construction item. It may include a description of any requirement for inspecting, testing, or preparing a supply, service, or construction item for delivery. State Chief Procurement Officer. The person holding the position as the head of the central procurement office of this State. State Public Procurement Unit. Agency of this State. The Office of the Chief Procurement Officer and any other Purchasing Supplies. All property, including but not limited to equipment, materials, printing, insurance, and leases of real property, excluding land or a permanent interest in land. Surplus Supplies. Any supplies other than expendable supplies no longer having use to the Authority. This includes obsolete supplies, scrap materials, and nonexpendable supplies that have completed their useful life cycle. 1.5 Public Access to Procurement Information Procurement information shall be a public record to the extent provided in Chapter 119, Florida Statutes, and shall be available to the public as provided in the Authority s Statement of Agency Organization and Operation (formerly 16U, F. A. C.). 5

12 CHAPTER 2 OFFICE OF THE PURCHASING DIRECTOR 2.1 Establishment, Appointment and Tenure (1) Establishment of the Position of Purchasing Director. There is hereby created the position of Purchasing Director who shall be the Authority's principal public purchasing official and purchasing agent. (2) Appointment. The Purchasing Director shall be appointed by the Executive Director. The Purchasing Director shall be a person with demonstrated executive and organizational ability, and shall have a minimum of three (3) years or equivalent experience in a purchasing, procurement, materials management, contract administration or logistics management position. Until such time as the position of Purchasing Director is filled pursuant to further authorization by the Authority Board of Directors, the Executive Director shall serve as the Purchasing Director. 2.2 Authority and Duties (1) Principal Public Purchasing Official. Except as otherwise provided herein, the Purchasing Director shall serve as the principal public purchasing official for the Authority, and shall be responsible for the procurement of supplies, services, and construction in accordance with this Policy, as well as the management of supplies. (2) Duties. In accordance with this Policy, and subject to the supervision of the Executive Director, the Purchasing Director, or a subordinate authorized representative designee of the Purchasing Director, shall: (b) (c) procure or supervise the procurement of all supplies, services, and construction needed by the Authority; exercise direct supervision over the Authority's central stores and general supervision over all other inventories of supplies belonging to the Authority; sell, trade, or otherwise dispose of surplus supplies belonging to the Authority; and (d) establish and maintain programs for specifications development, contract administration and inspection and acceptance. (3) Operational Procedures. Consistent with this Policy, and with the approval of the Executive Director, the Purchasing Director: (b) shall have the authority and responsibility to promulgate procedures governing the procurement, management, control and disposal of any and all supplies, services and construction to be procured by the Authority; and may adopt operational procedures relating to the execution of the duties of the Purchasing Director. These may be set forth in a manual or handbook. 6

13 2.3 Delegation to Other Authority Officials The Purchasing Director may not delegate authority to purchase supplies, services, or construction items to other Authority officials, unless specifically authorized by the Executive Director when such delegation is deemed necessary for the effective procurement of certain supplies, services or construction. Notwithstanding the foregoing, the Purchasing Director may delegate authority to subordinate authorized representative designees of the Purchasing Director in accordance with Section 2.2 above. 2.4 Unauthorized Purchases Except as herein provided in this Policy, it shall be a violation of this Policy for any Authority officer, employee, or other person, to order the purchase of any materials or supplies, or make any contract for materials, supplies or services within the purview of this Policy in the name of or on behalf of the Authority other than through the Purchasing Director or a designee of the Purchasing Director, and the Authority shall not be bound by any purchase order or contract made contrary to the provisions herein. Consistent with established Personnel Rules and Regulations, the Executive Director may impose any one or more of the following sanctions on an Authority employee for violation of this Section of this Policy: (1) oral or written warnings or reprimands; (2) suspension with or without pay for specified periods of time; or (3) termination of employment. 7

14 CHAPTER 3 SOURCE SELECTION AND CONTRACT FORMATION 3.1 Methods of Source Selection Competitive Sealed Bidding (1) Conditions for Use. All contracts of the Authority shall be awarded by competitive sealed bidding except as otherwise provided in Sections (Competitive Sealed Proposals), (Contracting for Designated Professional Services), (Delegation of Authority), (Sole Source Procurement), (Emergency Procurements), and (Public Announcement, Competitive Selection and Negotiation) of this Policy. (2) Invitation for Bids. An invitation for bids shall be issued and shall include specifications, and all contractual terms and conditions applicable to the procurement. (3) Public Notice. Public notice of the invitation for bids shall be given not less than ten (10) calendar days prior to the date set forth in the notice for the opening of bids. Such notice may be given by mail or by publication in a subscription newspaper of general circulation in each county of the Authority. The public notice shall state the place, date, and time of bid opening. (4) Bid Opening. Bids shall be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids. The amount of each bid and such other relevant information as the Purchasing Director deems appropriate, together with the name of each bidder, shall be recorded. (5) Bid Acceptance and Bid Evaluation. Bids shall be unconditionally accepted without alteration or correction, except as authorized in this Policy. Bids shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award shall be objectively measurable, such as discounts, transportation costs, and total or life cycle costs. The invitation for bids shall set forth the evaluation criteria to be used. No criteria may be used in bid evaluation that are not set forth in the invitation for bids, in regulations, or in this Policy. (6) Correction or Withdrawal of Bids; Cancellation of Awards. Correction or withdrawal of inadvertently erroneous bids before or after bid opening, or cancellation of awards or contracts based on such bid mistakes, may be permitted where appropriate. Mistakes discovered before bid opening, may be modified or withdrawn by written or telegraphic notice received in the office designated in the invitation for bids prior to time set for bid opening. After bid opening, corrections in bids shall be permitted only to the extent that the bidder can show by clear and convincing evidence that a mistake of a nonjudgmental character was made, the nature of the mistake, and the bid price actually intended. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the Authority or fair competition shall be permitted. In lieu of bid correction, a low bidder alleging a material mistake of fact may be permitted to withdraw his bid if: 8

15 (b) the mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or the bidder submits evidence which clearly and convincingly demonstrates that a mistake was made. All decisions to permit the correction or withdrawal of bids, or to cancel awards or contracts based on bid mistakes, shall be supported by a written determination made by the Purchasing Director or a designee of the Purchasing Director whose determination shall be final. (7) Award. The contract shall be awarded with reasonable promptness by appropriate written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids and is approved by the Authority Board of Directors except as otherwise provided for by Section In the event the low responsive and responsible bid for a construction project exceeds available funds, and such bid does not exceed such funds by more than 15 percent, the Purchasing Director is authorized, when time or economic considerations preclude re-solicitation of work of a reduced scope, to negotiate an adjustment of the bid price with the low responsive and responsible bidder, in order to bring the bid within the amount of available funds. Any such negotiated adjustment shall be subject to approval by the Authority Board of Directors. (8) Multi-Step Sealed Bidding. When it is considered impractical to initially prepare a purchase description to support an award based on price, an invitation for bids may be issued requesting the submission of unpriced offers to be followed by an invitation for bids limited to those bidders whose offers have been determined to be technically acceptable under the criteria set forth in the first solicitation Competitive Sealed Proposals (1) Conditions for Use. When the Purchasing Director determines that the use of competitive sealed bidding is either not practicable or not advantageous to the Authority, a contract may be entered into by use of the competitive proposals method. (2) Request for Proposals. Proposals shall be solicited through a request for proposals. (3) Public Notice. Adequate public notice of the request for proposals shall be given in the same manner as provided in Section 3.1.1(3) (Competitive Sealed Bidding, Public Notice); provided, the minimum time shall be ten (10) calendar days. (4) Receipt of Proposals. No proposals shall be opened until the time designated in the public notice of the request for proposals. A register of proposals shall be prepared containing the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the item offered. (5) Evaluation Factors. The request for proposals shall state the relative importance of price and other evaluation factors. 9

16 (6) Discussion with Responsible Offerors and Revisions to Proposals. As provided in the request for proposals, discussions may be conducted with responsible offerors who submit proposals determined to be reasonably likely to be selected for award for the purpose of clarification to assure full understanding of, and conformance to, the solicitation requirements. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals and such revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. (7) Award. Award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the Authority, taking into consideration price and the evaluation factors set forth in the request for proposals. No other factors or criteria shall be used in the evaluation. The Contract file shall contain the basis on which the award is made Contracting for Designated Professional Services (1) General Authority. Procurement of certain professional services licensed to practice in Florida, shall be by the use of the competitive sealed proposals method set forth in Section (Competitive Sealed Proposals), except as authorized by Section (Sole Source Procurement) or Section (Emergency Procurement), or except when the fee for professional services is limited to $6,000 or less per fiscal year of the Authority, procurement of professional services may be authorized by Section (Delegation of Authority). (2) Contracts for Legal Services. The Authority Board of Directors may authorize the procurement of legal service by negotiating with a lawyer or lawyers selected or recommended by the Authority Attorney on the basis of experience and skill. (3) Contracts for Audit by an Independent Certified Public Accountant. The Authority Board of Directors shall be responsible for selecting an independent certified public accountant to audit the Authority according to Chapter , Florida Statutes. A selection committee consisting of the Executive Director, Budget/Accounting Analyst and one other person designated by the Executive Director shall be established and shall follow the competitive auditor selection procedures outlined in Chapter (3), Florida Statues (formerly Chapter 11.45(3)6, Florida Statues). (4) Contracts for Other Services. Notwithstanding the foregoing, the Authority Board of Directors may authorize the procurement of other services by negotiating with organizations selected or recommended by the Executive Director on the basis of experience and skill Delegation of Authority (1) Only the Authority Board of Directors, or their designee, is authorized to approve procurement contracts on behalf of the Authority. (2) The Authority Board of Directors authorizes the Authority s Executive Director, or his/her designee to: 10

17 (b) (c) Approve purchase procurement contracts up to $100,000 for products and services included in and consistent with the adopted annual budget. Approve and execute work assignments for continuing professional services contracts that do not exceed $50,000 (or as may be approved in the contract). Approve and execute certain contract renewals, extensions, amendments, and term contracts (as may be provided in the contract). (3) Threshold Levels for Purchasing: (b) (c) All procurement will be conducted in a manner that promotes competition and secures the best value. The establishment of thresholds is to aid in the initial determination of the most appropriate procurement method. Minimum threshold requirements are: Threshold of Value Up to $3,000 $3,001 to $25,000 $25,001 to $50,000 Over $50,000 Requirement One (1) quote. May be obtained by verbal quotation, written documentation, or pricing otherwise observed such as state purchasing contract. Three (3) quotes. Quotes may be made by written documentation, which may include verbal quotations or prices otherwise observed such as state purchasing contract. Invitation for quotes shall be solicited. A minimum of three (3) written quotes shall be solicited, which may include prices otherwise observed such as state purchasing contract. Formal solicitation. Sealed bids are submitted in response to a formal invitation for bids or proposals Sole Source Procurement A purchase may be made or a contract may be awarded without competition when the Purchasing Director determines in writing, after conducting a good faith review of available sources, that there is only one available source for the required supply, service, or construction item. The Purchasing Director shall insure negotiations are conducted, as appropriate, as to price, delivery, and terms. A record of sole source procurements shall be maintained as a public record and shall list each contractor's name, the amount and type of each contract, a listing of the item(s) procured under each contract, and the number of each purchase order. Due to the uniqueness of real property, contracts for the acquisition of leasehold interests in real property shall generally be considered as a sole source procurement and awarded in accordance with this provision, provided, however, that the Purchasing Director can recommend, and the Authority Board of Directors may direct the award of contracts in 11

18 accordance with other provisions of this Policy or other procedures designed to promote competition and otherwise fulfill the intent of this Policy under appropriate circumstances Emergency Procurements Notwithstanding any other provisions of this Policy, the Purchasing Director may make or authorize others to make emergency procurements of supplies, services, or construction items when there exists a threat to public health, welfare, or safety; provided that such emergency procurements shall be made with such competition as is practicable under the circumstances. A written determination of the basis for the emergency and for the selection of the particular vendor shall be included in the procurement file. As soon as practicable, a record of each emergency procurement shall be made and shall set forth the vendor's name, the amount and type of the purchase, a listing of the item(s) procured, and the number of the purchase order Cancellation of Invitations for Bids or Requests for Proposals An invitation for bids, a request for proposals, or other solicitation may be canceled, or any or all bids or proposals may be rejected in whole or in part as may be specified in the solicitation, when it is for good cause and in the best interests of the Authority. The reasons therefore shall be made part of the contract file. Each solicitation issued by the Authority shall state that the solicitation may be canceled and that any bid or proposal may be rejected in whole or in part for good cause when in the best interests of the Authority; however, any failure to provide said statement in a bid solicitation shall not bar the Authority from canceling or rejecting all bids. Bidders are on constructive notice of all provisions contained in this procurement policy. Notice of cancellation shall be sent to all businesses solicited or to all businesses that responded. The notice shall identify the solicitation, explain the reason for cancellation and, where appropriate, explain that an opportunity will be given to compete on any resolicitation or any future procurements of similar items Contact with Authority Board and Staff After issuance of an invitation for bids, a request for proposals, a request for qualifications, or other solicitation, or during renegotiation of an existing contract, prospective offerors or their agents, representatives or persons acting at the request of such offerors are prohibited from contacting members of the Authority Board of Directors and Executive Director or any members of a selection or negotiation committee until after the final recommendation is presented to the Board for approval or when the solicitation has been canceled or terminated. Any questions concerning a solicitation shall be directed only to the person designated by the Executive Director. Failure to adhere to this requirement may make the firm or team ineligible for selection at the discretion of the Authority. 3.2 Qualifications and Duties Responsibility of Bidders and Offerors If a bidder or offeror who otherwise would have been awarded a contract is found non-responsible, a written determination of non-responsibility, setting forth the basis of the finding, shall be prepared by the Purchasing Director. The unreasonable failure of a bidder or offeror to promptly supply information in connection with an inquiry with respect to responsibility may be grounds for a 12

19 determination of non-responsibility with respect to such bidder or offeror. A copy of the determination shall be sent promptly to the non-responsible bidder or offeror. The final determination shall be made part of the contract file and be made a public record Cost or Pricing Data (1) Required Submissions Relating to the Award of Contracts. A prospective contractor shall submit cost or pricing data when the contract is expected to exceed $100,000 and is to be awarded by competitive sealed proposals (Section 3.1.2), or by sole source procurement authority (Section 3.1.5). EXCEPTION: The submission of cost or pricing data relating to the award of a contract is not required when: (b) (c) (d) the contract price is based on adequate price competition; the contract price is based on established catalogue prices or market prices; the contract price is set by law or regulation; or it is determined in writing by the Purchasing Director that the requirements of Section 3.2.2(1) above may be waived, and the determination states the reasons for such waiver. (2) Required Submissions Relating to Change Orders or Contract Modifications. A contractor shall submit cost or pricing data with any change order or contract modification, including adjustments to contracts awarded by competitive sealed bidding, whether or not cost or pricing data was required in connection with the initial pricing of the contract, when the change or modification involves aggregate increases or aggregate decreases in costs plus applicable profits that are expected to exceed $25,000. EXCEPTION: The submission of cost or pricing data relating to the pricing of a change order or contract modification when: (b) unrelated and separately priced adjustments for which pricing data would not be required are consolidated for administrative convenience; or it is determined in writing by the Purchasing Director that the requirements of Section 3.2.2(3) above may be waived, and the determination states the reasons for such waiver. (3) Certification Required. A contractor, actual or prospective, required to submit cost or pricing data in accordance with this Section, shall certify that, to the best of its knowledge and belief, the cost or pricing data submitted was accurate, complete, and current as of a mutually specified date prior to the award of the contract or the pricing of the change order or contract modification. 13

20 (4) Price Adjustment Provision Required. Any contract award, change order, or contract modification under which the submission and certification of cost or pricing data are required shall contain a provision stating that the price to the Authority, including profit or fee, shall be adjusted to exclude any significant sums by which the Authority finds that such price was increased because the contractor-furnished cost or pricing data was inaccurate, incomplete, or not current Cost or Price Analysis A cost analysis or a price analysis, as appropriate, shall be conducted prior to award of the contract other than one awarded under Section (Competitive Sealed Bidding). A written record of such cost analysis or price analysis shall be made a part of the contract file Bid, Performance and Payment Bonds on Supply or Service Contracts Bid, performance and payment bonds or other security may be requested for supply contracts or service contracts as the Purchasing Director deems advisable to protect the Authority's interests. Any such bonding requirements shall be set forth in the solicitation. Bid, performance or payment bonds shall not be used as a substitute for a determination of a bidder or offeror's responsibility Public Entity Crimes Any bidder or offeror shall provide to the Authority a sworn statement pursuant to Section (3), Florida Statutes, on Public Entity Crimes. The statement shall be substantially the same as the form contained in Appendix A. 3.3 Types of Contracts and Contract Administration Types of Contracts (1) General Authority. Subject to the limitations of this Section, any type of contract which is appropriate to the procurement and which will promote the best interests of the Authority may be used, provided that the use of a cost-plus-a-percentage-of-cost contract is prohibited. A cost reimbursement contract may be used only when a determination is made in writing that such contract is likely to be less costly to the Authority than any other type or that it is impracticable to obtain the supply, service or construction item required except under such a contract. (2) Multi Term Contracts. Specified Period. Unless otherwise provided by law, a contract for supplies or services may be entered into for any period of time deemed to be in the best interests of the Authority, provided the term of the contract and conditions of renewal or extension, if any, are included in the solicitation and funds are available for the first fiscal period at the time of contracting. Payment and performance obligations for succeeding fiscal periods shall be subject to the availability and appropriation of funds therefore in the budget of the Authority, as determined by the Authority Board of Directors. 14

21 (b) Determination Prior to Use. Prior to the utilization of a multi-term contract, it shall be determined in writing: i. that estimated requirements cover the period of the contract and are reasonably firm and continuing; and ii. that multi-year contracts for continuing services for engineering, architectural, and landscape architectural services, shall contain a non-exclusivity clause that permits the Authority to utilize, at its option, either the services of the person, business, or organization holding a multi-year continuing service contract on a project basis per appropriate statutes. (c) Cancellation Due to Unavailability of Funds in Succeeding Fiscal Periods. When funds are not appropriated or otherwise available to support continuation of performance in a subsequent fiscal period, the contract shall be canceled and the contractor shall be reimbursed for the reasonable value of any non-recurring costs incurred but not amortized in the price of the supplies or services delivered under the contract. The cost of cancellation may be paid from any appropriations available for such purposes. (3) Multiple Source Contracting. (b) (c) General. A multiple source award is an award of an indefinite quantity contract for one or more similar supplies or services to more than one bidder or offeror. The obligation to order the Authority's actual requirements is limited by the Uniform Commercial Code, Chapter (1), Florida Statutes. Limitations on Use. A multiple source award may be made when award to two or more bidders or offerors for similar products is necessary for adequate delivery, service, or product compatibility. Any multiple source award shall be made in accordance with the provisions of Section (Competitive Sealed Bidding), Section (Competitive Sealed Proposals), (Delegation of Authority) or Section (Emergency Procurements) as applicable. Multiple source awards shall not be made when a single award will meet the Authority's needs without sacrifice of economy or service. Awards shall not be made for the purpose of dividing the business, making available product or supplier selection to allow for user preference unrelated to utility or economy, or avoiding the resolution of tie bids. Any such awards shall be limited to the least number of suppliers necessary to meet the valid requirements. Contract and Solicitation Provisions. The Authority's estimated supply or service requirements shall be specified in the solicitation, and contracts ensuring adequate delivery, service, or product compatibility will be entered, provided that: i. the Authority reserves the right to take bids separately if a particular quantity requirement arises which exceeds its normal requirement or an amount specified in the contract; and 15

22 ii. the Authority reserves the right to take bids separately if the Purchasing Director approves a finding that the supply or service available under the contract will not meet a nonrecurring special need of the Authority. (d) Intent to Use. If a multiple source award is anticipated prior to issuing a solicitation, the Authority shall reserve the right to make such an award and the criteria for award shall be stated in the solicitation Contract Clauses and Their Administration (1) Contract Clauses. All Authority contracts for supplies, services, and construction shall include provisions necessary to define the responsibilities and rights of the parties to the contract. The Purchasing Director, after consultation with the Authority Attorney, may issue clauses appropriate for supply, service, or construction contracts, addressing among others the following subjects: (b) (c) (d) (e) (f) (g) (h) (i) (j) the unilateral right of the Authority to order in writing changes in the work within the scope of the contract; the unilateral right of the Authority to order in writing temporary stopping of the work or delaying performance that does not alter the scope of the contract; variations occurring between estimated quantities of work in contract and actual quantities; defective pricing; time of performance and liquidated damages; specified excuses for delay or nonperformance; termination of the contract for default; termination of the contract in whole or in part for the convenience of the Authority; suspension of work on a construction project ordered by the Authority, and; site conditions differing from those indicated in the contract, or ordinarily encountered, except that a differing site conditions clause need not be included in a contract: i. when the contract is negotiated; ii. iii. when the contractor provides the site or design; or when the parties have otherwise agreed with respect to the risk of differing site conditions. 16

23 (2) Price Adjustments. Adjustments in price resulting from the use of contract clauses required by Subsection (1) of this Section shall be computed in one or more of the following ways: i. by agreement on a fixed price adjustment before commencement of the pertinent performance or as soon thereafter as practicable; ii. iii. iv. by unit prices specified in the contract or subsequently agreed upon; by the costs attributable to the events or situations under such clauses with adjustment of profit or fee, all as specified in the contract or subsequently agreed upon; in such other manner as the contracting parties may mutually agree; or v. in the absence of agreement by the parties by a unilateral determination by the Authority of the costs attributable to the events or situations under such clauses with adjustment of profit or fee as computed by the Authority, as accounted for in accordance with Authority cost accounting principles regulations, or lack applicable Authority regulations in accordance with generally accepted cost accounting principles, and subject to the provisions of Chapter 8 (Appeals and Remedies). (b) A contractor shall be required to submit cost or pricing data if any adjustment in contract price is subject to the provisions of Section (Cost or Pricing Data). (3) Standard Clauses and Their Modification. The Purchasing Director, after consultation with the Authority Attorney, may establish standard contract clauses for use in Authority contracts. However, the Purchasing Director may, upon consultation with the Authority Attorney, vary any such standard contract clauses for any particular contract Contract Administration A contract administration system designed to insure that a contractor is performing in accordance with the solicitation under which the contract was awarded, and the terms and conditions of the contract, shall be maintained Cost Reimbursement Provisions If a contract is being funded in whole or in part by assistance from a federal agency, then reimbursement to contractors for incurred costs or cost estimates included in negotiated prices may be subject to appropriate federal cost principles, e.g., Subpart 1-15 of Title 41, Code of Federal Regulations. Individual federal agencies may have requirements applicable to their particular assistance programs. Lacking applicable federal regulations, individual federal agency regulations, or Authority regulations, cost reimbursement shall be in accordance with generally accepted cost accounting principles. 17

24 3.3.5 Right to Inspect Plant The Authority may, at reasonable times, inspect the part of the plant, place of business, or worksite of a contractor or sub-contractor at any tier which is pertinent to the performance of any contract awarded or to be awarded by the Authority Right to Audit Records (1) Audit of Cost or Pricing Data. The Authority may make provision in its contracts such that it can, at reasonable times and places, audit the books and records of any contractor who has submitted cost or pricing data pursuant to Section (Cost or Pricing Data) to the extent that such books, documents, papers, and records are pertinent to such cost or pricing data. Any person who receives a contract, change order, or contract modification for which cost or pricing data is required, shall maintain such books, documents, papers, and records that are pertinent to such cost or pricing data for five years from the date of the final payment under the contract. (2) Contract Audit. The Authority shall be entitled to audit the books and records of a contractor or a subcontractor at any tier under any negotiated contract or subcontract, other than a fixed-price contract, to the extent that such books, documents, papers, and records are pertinent to the performance of such contract or subcontract. Such books and records shall be maintained by the contractor for a period of five years from the date of the final payment under the prime contract and by the subcontractor for a period of five years from the date of final payment under the subcontract. (3) Contractor Records. If a contract is being funded in whole or in part by assistance from a federal agency, then the contract shall include provisions: requiring the contractor and subcontractors at any tier to maintain for five years from the date of final payment under the contract all books, documents, papers, and records pertinent to the contract; and (b) requiring the contractor and subcontractor at any tier to provide to the Authority, the federal grantor agency, the Comptroller General of the United States, or any of their duly authorized representatives access to such books, documents, papers, and records for the purpose of examining, auditing and copying them Authority Procurement Records All determinations and other written records pertaining to the solicitation, award, or performance of a contract shall be maintained for the Authority in a contract file by the Purchasing Director, and shall be retained and disposed of by the Authority in accordance with Records retention guidelines and schedules approved by the Clerk of the Authority Board of Directors. 18